During its October 28, 2011, conference, the U.S. Supreme Court remanded to the Ninth Circuit its ruling denying federal preemption to a generic manufacturer of ibuprofen to be reassessed in light of the Court's Mensing decision last term. The remand potentially presents an opportunity for the Supreme Court to consider the scope of federal preemption in the context of over-the-counter medications.

The claims in Perrigo v. Gaeta arose from serious injuries—including the necessity of a liver transplant—sustained by a minor allegedly caused by a toxic reaction to generic, over-the-counter ibuprofen that he received following surgery to remove moles. The minor's parents brought an action against the manufacturer of the generic ibuprofen, L. Perrigo Company, contending, among other things, a failure to warn of the hepatoxic risks of ibuprofen when used in conjunction with Halothane, an anesthetic which the pediatric patient had received during the surgery.

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